62 Me. 272 | Me. | 1874
The defendant corporation was authorized by a private act approved April 4, 1859, c. 352, § 1, to erect and maintain on the Kennebec river, in the town of Farmingdale, a boom with piers, and all the necessary fixtures, for the purpose of taking and securing any logs, masts, spars or other timber floating down said river; * * ® provided the same shall be so constructed as not to obstruct in any manner the free navigation of the said river; and for the purpose aforesaid, said company may take and use, any shore, flats or land adjacent, which may be necessary for the erection and occupation of said boom; provided, however, said company shall pay the owners of said property so taken “a reasonable compensation therefor.”
By § 2, “if any person shall suffer damage by the exercise of these powers herein granted to said company, and the amount cannot be agreed npon by the parties, then the Supreme Judicial
The statute contemplates both the taking and the using of shores, flats, &c. The defendants may take what they do not use. They may use what they do not take.
The taking of real estate is by attachment, or levy, or by virtue of some statutory proceedings. In all cases, the taking is to be evidenced by some writing describing the real estate so taken by definite and specific boundaries.
The vote of the defendant corporation is in these words: “Noted, the directors be authorized to build the Brown’s Island boom this season.”
But this is no taking of land. It neither describes what has been, or was to be taken or used.
The evidence offered by the defendants was to show what shores and flats, (fee., have been occupied and used by them and nothing else. The only written evidence of taking was the above vote, which amounts to nothing.
There is, then, no taking evidenced by vote of the defendant corporation, by the report of their committee, or in any other way Ijy any written document whatsoever. '
Now the committee are to assess damages for “the property so taken.” It is manifestly impossible to attempt their assessment without knowing to what property the injury has been done. The statute contemplates a taking Avithin definite bounds. The owner of the land cannot otherwise know whether the action of the defendants is within or vdthout the land, &c., taken, if there are no ascertained nor ascertainable limits. Neither can the committee proceed to assess damages upon an indefinite and undetermined tract. It is not for them to ascertain the shores, flats, &c., which are taken by resorting to the uncertainties of conflicting testimony. There must be written evidence of the territory the defendants may elect to take and use.
Exceptions overruled.
